• International conventions and treaties whether general or particular, establishing rules expressly recognized by the contesting states;(1)

• International custom as evidence of a general practice, accepted as law;(2)

• the general principles of law, recognized by civilized nations;(3)

• judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means of the determination of rules of law”(4)

(1) Treaties are the major instruments of cooperation in international relations, and cooperation also involves a change in the relative positions of the states involved (for example, rich countries give money to poor countries). The general trend, particularly after the Second World War, has been to enhance the role of treaties in international law-making.

Treaties constitute states’ explicit acceptance of specific rights and duties among themselves. Sometimes treaties serve to codify existing rules of international law (for example, The Vienna Convention on Diplomatic Relations).

At other times treaties are legislative in character. Legislative treaties create new laws, new rights or obligations that the parties of the treaty are expected to observe. On occasion, a treaty may both codify and legislate, as did the Law of the Sea Treaty.

Like custom, treaties bind only those states that have agreed to them. The Vienna Convention on the Law of Treaties, which entered into force in 1980, is the primary source for the law of treaties. Most provisions of the Vienna Convention were declaratory of existing law while others went beyond the existing law to create new law at the time they were adopted.

The Vienna Convention sets forth a basic definition for a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument, or in two or more related instruments and whatever its particular designation”.

(2) Nevertheless, until this century, the most dominant form of international law was custom. Customs describe what states actually do out of sense of legal obligations. Customary law follows the basic principle of international law: that acts are permitted unless expressly forbidden.

As confirmed by the International Court of Justice in the Nicaragua case, custom is constituted by two elements, the objective one of a “general practice”, and the subjective one “accepted as law”.

The material sources of custom are very numerous and include the following: diplomatic correspondence, policy statements, press releases, executive decisions and practices, state legislation, international and national judicial decisions, and resolutions relating to legal questions in the United Nations General Assembly.

States can choose which custom they will observe as law. Indeed, what a state asserts a new right, others may so quickly follow suit that a new customary principle can emerge. Such was a case after the Second World War when the USA claimed exclusive rights to exploit the continental shelf along its coast for various resources. Then most other coastal countries had made similar claim to their continental shelves, giving rise to a new customary principle of international law.

(3) The third source of international law listed in the Statute of International Court of Justice are “the general principles of law, recognized by civilized nations”. This phrase was inserted in the Statute in order to provide a solution in cases where treaties and custom provided no guidance. According to this definition, general principles of law are not so much a source of law as a method of using existing sources.

Examples of this type general principle are the principle of consent, good faith, domestic jurisdiction, and the freedom of the seas, the doctrine of sovereign equality, etc. Some of them are contained in the UN Charter: equal rights and self-determination of people; sovereign equality of states; disputes are to be settled by peaceful means, etc. Most modern writers regard general principles as a secondary source of international law, infrequently used in practice but possibly helpful on occasion. Unlike treaties and customary law, general principles are derived from domestic law and are not principles originating from international relations or obligations. The general principles of law are the principles that are common to the legal systems of all civilized nations.

(4) Article 38 directs the Court to apply “judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means of the determination of rules of law”. These decisions and teachings are categorized as secondary sources because they are only to interpret and apply the law. Unlike many domestic legal systems a judicial decision in the international law systems doesn’t create a binding legal precedent. The reasoning is based on the fact that only states make international law. In domestic legal systems, courts interpret and apply the law. In international law courts are not obliged to follow previous decisions, although they almost always take previous decisions into account.

International legal doctrines, however, play a wider role. The views of specialists on international law exert a substantial influence upon the formation of awareness of international law among persons concerned with international affairs, and through them on the international position of states.

Like judicial decisions, the writings of publicists can be evidence of customary law, but they can also play a subsidiary role in developing new rules of law. Writers had a significant impact on the early development of international law. These experts don’t create the law, but they early often help to clarify it, point out its weakness and make suggestion for improvement.

Task 2. Answer the following questions using the information of the text

1. In what way does the modern approach expand the definition of sources of international law?

2. Does Article 38 exactly state what legal norms are binding?

3. Why are treaties the major instruments of international law?

4. What general trend has been to enhance the role of treaties in international law-making?

5. Prove that some treaties are legislative in character.

6. What are the two elements of custom?

7. How can new customary principles emerge?

8. Why are “the general principles…” included among the sources of international law?

9. Give some examples of general principles of law. What are they derived from?

10. Why aren’t judicial decisions recognized by states as binding norms?

11. Why don’t judicial decisions create a binding legal precedent?

12. Prove the necessity of writings of the publicists being included among the sources of international law.

Task 3. Fill in the blanks with the words from the box

legislative custom explicit acceptance subjective executive decisions general principles clarify -law material sources previous decisions formation objective

1. The word “source of law” has a variety of ______interpretations, which has changed over times.

2. ______ treaties create new laws, new rights or obligations that the parties of the treaty are expected to observe.

3. The views of specialists on international law exert a substantial influence upon the ______ of awareness of international law.

4. Treaties constitute states’ ______ ______ of specific rights and duties among themselves.

5. The ______ ______ of custom include the following: diplomatic correspondence, policy statements, press releases, _______ ______ and practices etc.

6. ______ is constituted by two elements, the _______ one of a “general practice” and the ______ one “accepted as law”.

7. In international law courts are not obliged to follow previous decisions, although they almost always take ______ ______ into account.

8. The experts don’t create the law, but they early often help to ______ it, point out its weakness and make suggestion for improvement.

9. States can choose which custom they will observe as _________.

10. Most modern writers regard ______ _____ as a secondary source of international law.

Task 4. Mark the sentences as True or False

1. The problem of sources of international law refers to issue concerning which international norms are legally binding and which are not.

2. Treaties constitute states explicit acceptance of specific rights and duties among themselves.

3. Customary law follows the basic principle of international law: that acts are permitted unless expressly forbidden.

4. Like custom, treaties bind only those states that have agreed to them.

5. What a state asserts a new right, others may so quickly follow suit that a new customary principle can emerge.

6. Unlike treaties and customary law general principles are derived from domestic law

7. Unlike many domestic legal systems a judicial decision in the international law systems doesn’t create a binding legal precedent.

8. General agreement about what are the sources of international law is contained in Article 38 of the UN Charter.

9. The writings of publicists can be evidence of customary law, but they can also play a subsidiary role in developing new rules of law.

10. Convention on the Law of Treaties, which entered into force in 1980, is the primary source of international law.

Task 5. Translate the following

To regulate relations, источники международного права, international norms, legally binding, the Statute of the International Court of Justice, в соответствии с международным правом, international conventions, rules expressly recognized by the contesting states, международный обычай, a general practice, общие принципы права, recognized by civilized nations; judicial decisions, the teachings of the most highly qualified publicists, as subsidiary means, the determination of rules of law, instruments of cooperation, international law-making, explicit acceptance of specific rights, кодифицировать existing rules of international law, legislative treaties, the Vienna Convention on the Law of Treaties, вступать в силу, the primary source, international agreement, legal obligations, acts are permitted unless expressly forbidden, the material sources of custom, дипломатическая переписка, policy statements, executive decisions and practices, state legislation, to assert a new right, принцип согласия, the doctrine of sovereign equality, equal rights and self-determination of people, sovereign equality of states, disputes are to be settled by peaceful means, subsidiary means of the determination of rules of law, secondary sources, a binding legal precedent, толковать и применять закон, to follow previous decisions, международные правовые доктрины.

Task 6. Match the words and word combinations with their Russian equivalents

domestic jurisdiction	принятие прав
subsidiary means	самоопределение народа
the primary source	определение норм права
legally binding norms	заявить о новом праве
claim exclusive rights	судебное решение
international law-making	положения конвенции
general principles of law	общие принципы права
the determination of rules of law	толковать и применять право
provisions of the Convention	международное законотворчество
the principle of consent	принцип согласия
acceptance of rights	внутренняя юрисдикция
secondary sources	усиливать роль договоров
to settle disputes by peaceful means	разрешать споры мирными средствами
self-determination of people	вспомогательное средство
freedom of the seas	юридический прецедент, имеющий обязательную силу
judicial decision	заявлять об исключительных правах
interpret and apply the law	главные источники
to enhance the role of treaties	производные (вторичные) источники
assert a new right	юридически обязательные нормы
binding legal precedent	свобода открытого моря

Task 7. Compare the meanings of the similar-looking words in English and in Russian. Use them in the sentences of your own

Statute – статут (1. международный коллективный акт конститутивного характера 2. закон; законодательный акт 3. устав)

Practice – практика, обычай; обыкновение; нормы процесса

Cooperation – сотрудничество; совместные действия; содействие; кооперация

Codify – кодифицировать, шифровать

Convention – съезд; конвент; конвенция (международный договор); обычай

Instrument – инструмент; орудие; документ, представляющий собой правовой акт

Objective – объективный; действительный, реальный; беспристрастный

Subjective – субъективный, индивидуальный, личный; присущий только данному человеку

Interpret – объяснять, толковать, интерпретировать; понимать; переводить (устно)

Formal – формальный; официальный; относящийся к форме; надлежаще оформленный

Task 8. Translate the text